Burdell v. Taylor

California Supreme Court Jun 26, 1891 No. No. 13303Published

Before: Foote

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Holding. The court held that the evidence sufficiently supported the jury's verdict in favor of the plaintiff regarding land boundaries and title, and that no reversible error occurred regarding evidentiary rulings or jury instructions.

Issues

Whether the evidence was sufficient to support the jury's verdict regarding land boundaries and adverse possession.
Whether the trial court erred in admitting an interlined survey record into evidence.
Whether the trial court erred in excluding testimony from the defendant regarding the location of a survey line.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We think the evidence sufficient to show that no such adverse possession ever took place.”

“the jury were fully warranted in finding, as they did, for the plaintiff, whose evidence as to the true line between these surveys was virtually uncontradicted.”

“We perceive no merit whatever in this appeal, and advise that the judgment and order be affirmed.”

Synopsis

Survey os Swamp-land — Record — Interlineation—Evidence. — The record o£ the survey of swamp-land patented by the state is not rendered inadmissible in evidence because of an interlineation, where the maker and recorder of the survey testified that the interlineation was made before its execution by him.

Id.—Evidence of Successor of County Surveyor—Handwriting of. Predecessor. — The evidence of the successor of the county surveyor who made and recorded the survey, that an interlineation therein was in the handwriting of his predecessor, is admissible and proper, where it is shown that the successor, as county surveyor, had charge of the official documents of that office, and had frequently examined numerous docu. ments therein, purporting to he in the handwriting of his predecessor and which the latter had testified were in his handwriting.

Ejectment — Conflict of Surveys — Uncertain Survey — Evidence as to Location of Line —Error without Prejudice. —In an action of ejectment, where there is a conflict of surveys of the land in controversy, -it is not prejudicial error to refuse to allow the defendant to answer a question as to whether, in running his line of survey, it fell north or south of a certain wharf, where it appeared that he was not possessed of any knowledge where the true line ran.

Foote, C. — This is an action in ejectment to recover possession of certain parcels of land claimed by the plaintiff. The trial was bad before a jury, who returned a verdict for the plaintiff; judgment was thereupon rendered, from which, and an order refusing a new trial, the defendant appeals.

One ground of error claimed is, that the evidence does not support the verdict.

The plaintiff claimed title through certain state patents to swamp and overflowed land, surveys numbered 56 and 61, and certain mesne conveyances made under those patents.

The defendant claimed some of the land in controversy as being within the lines of a Mexican land grant to which he had title, and by virtue of a certain state patent of swamp and overflowed land, survey No. 55, and by adverse possession for five years.

We think the evidence sufficient to show that no such adverse possession ever took place.

The real conflict in the matter was as to whether the land in controversy lay within the patents for surveys Nos. 61 and 56, or lay within the Mexican grant and the state patent for survey No. 55.

The county surveyor who made all the original surveys for these patents, Mr. Easkoot, and Mr. Dodge, who succeeded him, testify that the two parcels of land last described in the complaint are within the patent for swamp-land survey No. 56. And the ^defendant, in his original brief, at page 2, concedes as much. This being [615]so, it cannot be said that the jury were wrong in their verdict to that extent, particularly when we come to look at the testimony for the defendant, which falls far short of satisfactorily showing that this land was within the patent for swamp-land survey No. 55.

Easkoot seems to have made all the surveys of these swamp-lands, and to have commenced at a certain bay-tree, a natural monument still standing, as an initial point. Dodge followed his plan in locating the boundaries on the ground. But the surveyor employed by the defendant commenced at a stake at the southwest corner of section 32, which he was told by the defendant was a section corner, but about the truth of which he knew nothing. Neither he nor the defendant satisfactorily established this as the true corner of that section; and when Easkoot was recalled to rebut their evidence, he stated that in making the surveys for these swamp-laud patents he never set any stake at that corner, never made any survey by reference to it, and never saw one there. In fact, the evidence did not show in any satisfactory way that this stake, from which the defendant’s surveyor commenced his survey to locate the line between the land embraced in patents for survey 55 and survey 56, was the true southwest corner of section 32 at all. This being so, the jury were fully warranted in finding, as they did, for the plaintiff, whose evidence as to the true line between these surveys was virtually uncontradicted.

Burdell v. Taylor

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